SC set to dismiss MOA-AD petitions--sources
by ARIES RUFO, abs-cbnNEWS.com/Newsbreak | 09/24/2008 5:34 PM
Printer-friendly version | 
Send to friend | 
Share your views
The Supreme Court (SC) is poised to dismiss the petitions questioning the legality of the botched ancestral domain agreement with the Moro Islamic Liberation Front (MILF) on the ground that there exists no actual controversy to settle the issue.
abs-cbnNews.com/Newsbreak sources said this is the emerging position of majority of the justices, which could relegate the assigned ponente, Justice Conchita Carpio-Morales, with the minority, which wanted to rule on the unconstitutionality of the Memorandum of Agreement on Ancestral Domain (MOA-AD).
If Carpio-Morales disagrees with the majority, a new ponente would be assigned to write the ruling.
Initial en banc discussion showed that at least nine justices were of the opinion that the controversy is “not ripe” or ready for judicial resolution considering that the agreement has not been signed in the first place.
The sources, who had inside information in the SC, said the justices could refrain from declaring the issue as moot and academic (which may also be a ground for declaring a case as lacking justiciable controversy) but only on the ground of prematurity as basis in dismissing the petitions.
The new majority does not include Chief Justice Reynato Puno, based on reports gathered by abs-cbnNEWS.com/Newsbreak.
Petitioners against the MOA-AD have asked the Tribunal to declare it as unconstitutional despite government pronouncements that it is not pushing through with the signing of the agreement. The government's move came in the heels of adverse public reaction to the agreement.
No MOA?
During the oral arguments in the SC, some justices raised the possibility that the creation of the Bangsamoro Juridical Entity (BJE), which would govern the new Moro ancestral domain as envisioned by the agreement, risks the dismemberment of the country.
But a number of justices, like Justice Antonio Nachura noted that “there is no MOA in the first place” since it was only initialed and not signed.
Justice Ruben Reyes pointed out that with the absence of the signatures, there is no perfected contract and thus has no legal significance.
Justice Arturo Brion agreed, saying “effectively there is no MOA.”
While the government may no longer pursue the signing of the MOA “in its present or any other form” which renders the issue moot, petitioners argued that the SC should still decide on its constitutionality to prevent a repetition of the issue.
They noted that the SC has not hesitated to act on cases and render judicial opinion despite the case being mooted.
Court sources said the majority would not argue on the point of mootness “since there were already precedent cases” where they acted just the same.
Don't embarrass Palace
A declaration of prematurity would give them an elbow room to dismiss the case for lack of justiciable controversy without embarrassing Malacañang.
There was also a necessity to wrest the role of ponente from Carpio-Morales who could come up with “strongly-worded” ruling that could embarrass the Palace.
Carpio-Morales, they noted, is one of the few justices who appears to be not beholden to Malacañang.
The SC has, in the past, dismissed cases for lack of actual case due to prematurity. One case closest to the MOA controversy was the (Eugene) Tan versus (Diosdado) Macapagal case, where the Court dismissed the petition questioning the acts of the 1971 Constitutional Convention in discussing and proposing changes in the Charter.
In that ruling, the SC ruled that before a judicial determination can be rendered, “it is a prerequisite that something had by then been accomplished by either branch before a court may come into the picture.”
The SC further said: “At such a time, it may pass on the validity of what was done but only “when…. properly challenged in an appropriate proceeding.”
The Court noted that when the petition was filed, the proposed amendments to the 1971 Convention “is still unacted on…(thus) there is no room for the interposition of judicial oversight. Only after it has made concrete what it intends to submit for ratification may the appropriate case be instituted. Until then, the courts are devoid of jurisdiction.”
The MOA-AD commits the government to amend the Constitution to conform with the provisions of the agreement.
Justices Antonio Carpio and Adolfo Azcuna, two of those critical of the agreement, noted that the Constitution would have to be ratified “regardless whether Congress refuses to initiate it or if it is not ratified by the people” since it is an obligation based on international law.
